The print media could be regulated extensively

Five years ago the federal government had limited power to regulate newspapers. So, apart from some requirements in the electoral acts regarding certification of information by editors around elections and the laws of defamation, newspapers have remained outside the government’s regulatory remit.

This contrasts with radio and television broadcasters, which are subject to piecemeal federal legislation, including complex licensing regimes.

The government’s light touch on print media has been a product of the way the constitution has been interpreted, experts say. Section 51 allows the government to legislate with respect to “postal, telegraphic, telephonic, and other like services".

The High Court has found that “other like services" extends to radio and broadcasting. But since the section has been seen as one that relates to methods of transmission of information, rather than publishing in print, the government has historically been reluctant to regulate the print media directly, says George Williams, a constitutional law expert from the University of NSW.

Following the landmark 2006 WorkChoices case, where the High Court upheld the Howard government’s workplace laws by applying the corporations power in the constitution, the government now “has the scope to regulate the media to a far greater extent, at least to the extent that the media operates through corporate interests," Professor Williams says.

“What were clear limitations on federal power have now been removed, and that opens up possibilities [for more media regulation]."

Communications Minister
Stephen Conroy
said yesterday the government’s review would extend to digital and online platforms.

Given there has been no litigation to test whether section 51 extends to the internet, the government’s power to ultimately impose federal regulations on bloggers who operate outside media corporations is uncertain, Professor Williams says. But the High Court is likely to find section 51 does extend to the internet, he says.

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Any federal regulation of the media is limited by the “implied freedom of political communication" which flows from another High Court case, known as Lange. In that case the court found the constitution constrained the state from making laws or using its executive power to prevent citizens from participating in the democratic process.

But as long as any regulation maintains the ability for the media to make political comment, as current broadcasting regulations do, Professor Williams says, government regulation of print could potentially be very extensive.